142 Minn. 433 | Minn. | 1919
This was an action in tort to recover damages for the alleged wrongful and unlawful acts of defendant, the facts with respect to which are stated in the complaint. Issue was joined by the answer of defendant,. and the cause had been noticed for trial at the February, 1918, general term of the court in which it was brought. On February 16, two days before the first day of such term, the parties, acting without the guidance of their attorneys, and without the knowledge or consent of plaintiff’s attorney, yet in good faith and without purpose to defraud him, agreed upon a settlement of the action, in performance of which defen
Thereafter, in April, 1918, claiming a lien on the cause of action for his services and expenses, under the provisions of subdivision 3 of section 4955, G. S. 1913, plaintiff’s attorney brought this proceeding to open the judgment, and for leave to present his claim, and for judgment against defendant for the amount the court should find him 'entitled ■ to thereon. Issues joined in the proceedings were subsequently brought to trial before the court at a general term thereof on May 8, 1918. After hearing the parties and the evidence presented in support of and in opposition to the application, the court found the facts substantially as stated. The judgment was opened, the claim of lien sustained and an award made to the attorney thereon against defendant in the sum of $250, which the court found to be the reasonable value of his services, including expenses incurred in and about the commencement of the action and the preparation thereof for the trial. Judgment was entered accordingly and defendant appealed.
The findings of the trial court are challenged in certain specified particulars, but an examination of the record discloses evidence sufficient to support them in all respects, except perhaps the finding that plaintiff in the action is insolvent. -But that finding is immaterial. The attorney’s lien is created and given by statute, and the enforcement thereof, like the enforcement of any other lien, does not in any measure depend upon the solvency or insolvency of the client. The client may be perfectly solvent and able to pay the fees of the attorney, but that fact does not affect the attorney’s legal rights under the lien. So we pass without further comment the objections to the findings, and come to a consideration of the principal question in the case, namely: (1) Whether the statute giving an attorney a lien upon the cause of action extends to
1. The statute under consideration, subdivision 3 of section 4965, G. S. 1913, provides that an attorney shall have a lien for his compensation “upon the cause of action from the time of the service of the summons therein.” The contention of appellant that the statute does not apply to actions in tort is not sustained. Statutes of other states in substantially the same language have in a majority of cases been construed as applying to actions in tort as well as to actions upon contract. 6 C. J. p. 779; Greenleaf v. Minneapolis, St. Paul & S. S. M. Ry. Co. 30 N. D. 112, 151 N. W. 879, Ann. Cas. 1917D, 908, and note at page 917. And the statute of this state has been so applied in numerous instances, though the precise point has not heretofore been made. Desaman v. Butler Bros. 114 Minn. 362, 131 N. W. 463; Davis v. Great Northern Ry. Co. 128 Minn. 354, 151 N. W. 128; Castigliano v. Great Northern Ry. Co. 129 Minn. 279, 152 N. W. 413; Georgian v. Minneapolis & St. Louis R. Co. 131 Minn. 102, 154 N. W. 962. We see no reason for departing from the rule as so applied. Hammons v. Great Northern Ry. Co. 53 Minn. 249, 54 N. W. 1108; and Boogren v. St. Paul City Ry. Co. 97 Minn. 51, 106 N. W. 104, 114 Am. St. 691, 3 L.R.A.(N.S.) 379, holding to the contrary, were decided prior to the amendment of the statute by the revision of 1905, the effect of which was the abrogation of the rule therein stated, the correctness of which in the absence of statute is not questioned. Northrup v. Hayward, 102 Minn. 307, 113 N. W. 701, 12 Ann. Cas. 341.
2. It is contended that by failing to object to the entry of the judgment on the stipulation of settlement, when applied for in open court, the attorney waived his lien and should not now be heard in proceedings to enforce it. We do not sustain the point. In order to justify a court in declaring the waiver of an' existing legal right, in the absence of facts creating an estoppel, an intention to do so should clearly if not affirmatively appear. 40 Cyc. 261. It does not so appear in the case at bar. The settlement in question had been fully agreed upon and the money paid over prior to the time when the stipulation was presented to the court for the entry-of judgment, and no objection then made by the at-
This covers the case and all that we deem necessary to say in disposing of the questions presented. We find no error in the record,” the findings of the trial court are supported by the evidence, and the judgment appealed from must be affirmed.
It is so ordered.
Reported in 172 N. W. 496.